Electronic Arts Fumbles in Lawsuit Brought by College Athletes (again)

College sports is big business.  Student-athletes generate truckloads of cash for their schools, but are prohibited by NCAA rules from sharing in the haul.  In fact, if the student-athlete learns that someone is commercially exploiting his or her name or picture, NCAA rules require the student “to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics.”  (Wouldn’t we all have loved to have had that problem in college….)

Given this state of affairs, when Electronic Arts made its NCAA Football games using the likenesses of college athletes, it could not have obtained licenses from the students even if it had wanted to.  That would have violated NCAA rules.  So what happens when EA uses the likenesses of college athletes without permission, makes a bunch of money, and then doesn’t compensate the students?  After graduation, once they are no longer bound by NCAA rules, they all sue, of course!

  Continue reading the full story . . . »

TwitterFacebookLinkedInGoogle+Share

This Post Has No Comments.

Requiem for a Ridiculous Lawsuit

Last month, I wrote about some notable examples of film and television producers being sued or threatened for using other peoples’ creations without permission.  Examples included Emerson Electric suing NBC after Claire from Heroes stuck her hand in an “InSinkErator” brand garbage disposal; Coca Cola Companythreatening legal action against an Italian film distributor over a film in which Jesus drinks a can of Coke in the desert; Louis Vuitton suing Warner Brothersover the unauthorized use of their luggage being used by a character who pronounced it “Luis” Vuitton in The Hangover Part II;  and Mattel suing MCA Records over the song “Barbie Girl.”  As if on cue, another such example has just arrived.

This month, a judge ruled on a lawsuit brought by Faulkner Literary Rights, LLC against Sony Pictures, Inc. for the studio’s use of a single line from the book Requiem for a Nun (written by that Nobel Prize winning William Faulkner guy) that was paraphrased and attributed to the author in the movie Midnight in Paris (directed by that controversial Woody Allen guy):

Original quote from Requiem for a Nun

Paraphrased quote in Midnight in Paris

“The past is never dead.  It’s not even past.” “The past is not dead.  Actually it’s not even past.  You know who said that?  Faulkner, and he was right.  I met him too.  I ran into him at a dinner party.”

  Continue reading the full story . . . »


This Post Has No Comments.

Happy Birthday…You’re Being Sued!

Have you ever noticed how people rarely sing “Happy Birthday to You” in movies and television?  Instead, people usually sing “For He’s a Jolly Good Fellow,” even though no one actually sings that song in real life.  Nevertheless, this falsification of reality happens all the time.  My favorite example was when the crew of the Enterprise sang “For He’s a Jolly Good Fellow” to Worf on his birthday (in Klingon, naturally).  At the end of the song, Worf observed, “that is not a Klingon song.”  Worf’s observation is ironic, of course, because even humans don’t really sing “For He’s a Jolly Good Fellow” to each other on their birthdays.  (Well, maybe the humans who speak Klingon do….)

The reason for this falsification of reality is two-fold.  First, “For He’s a Jolly Good Fellow” is clearly in the public domain (which means you can use it for klingonfree).  Second, Warner/Chappell Music claims to own the copyright to the song “Happy Birthday to You” and charges $1,500 for a “synch license” whenever someone wants to use it on screen.

And until now, no one has ever formally challenged Warner/Chappell’s copyright to the Happy Birthday song.

Clearance Culture

Helping to falsify reality in films and television to avoid the risk of litigation is actually a full time job for some people in Hollywood.  Sadly, we live in a clearance culture, where every scene must be analyzed from top to bottom for potential trademarked or copyrighted works that could give rise to infringement claims.  If third-party intellectual property appears in a film or television show, there is often a license involved.  While at first blush this practice of obtaining a license for anything and everything may seem as crazy as kittens fighting each other with lightsabers, creators actually have a very good reason to be cautious.

Examples of film and television producers being sued for using other peoples’ creations are not difficult to find.  Some notable examples include:  Emerson Electric suing NBC after Claire from Heroes stuck her hand in an “InSinkErator” brand garbage disposal; Coca Cola Company threatening legal action against an Italian film distributor over a film in which Jesus drinks a can of coke in the desert;Louis Vuitton suing Warner Brothers over the unauthorized use of their luggage being used by a character who pronounced it “Luis” Vuitton in The Hangover Part II;  and Mattel suing MCA Recordsover the song “Barbie Girl.”  In one particularly famous case, an artist named Faith Ringgold, who created a distinctive silk screen on a quilt, successfully sued BET and HBO over a film that showed her art in the background for less than 30 seconds of total air time.

In the case of the recent Happy Birthday lawsuit, however, the issue is not about whether the work can or cannot be used without permission.  Instead, the issue is whether the song is even entitled to copyright protection at all.

The Happy Birthday Lawsuit

Earlier this month, a documentary film company called “Good Morning to You Productions Corp.” filed a lawsuit in New York federal court seeking, among other things, a declaration that the song “Happy Birthday to You” is in the public domain.  The documentary film company is making a documentary about the Happy Birthday song which apparently started out as a song called “Good Morning to You” back in 1893.  The company claims that it has “irrefutable documentary evidence, some dating back to 1893, [which] shows that the copyright to ‘Happy Birthday,’ if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to ‘Happy Birthday,’ those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935.”

According to the documentary filmmakers, people started using the song “Good Morning to You” with the words “Happy Birthday to You” as early as 1901.  The filmmakers also claim that the lyrics to Happy Birthday to You were first published in 1911 by the Board of Sunday Schools of the Methodist Episcopal Church and that a copyright application was filed the following year.  These facts, if true, prove two things.  First, you can apparently make a documentary film about any subject these days regardless of how esoteric the topic might be.  And second, the Happy Birthday song may actually have fallen into the public domain.

The legal arguments involved in this case will involve the vagaries of pre-1976 Copyright Act law that, for most non-IP lawyers, would give Ambien a run for its money.  Of greater general interest, though, is the broader hypothetical question about whether singing Happy Birthday in a film or television show ordinarily can be done without permission.  In other words, is this lawsuit even necessary?

Happy Birthday Without Permission

Analyzing copyright issues can be complicated because there are always numerous points to consider.  For example, you might wonder why Happy Birthday is entitled to protection at all if people use it in a functional way (i.e., to wish someone a happy birthday).  The sculptural design of a “Ribbon®” bike rack, for example, is not copyrightable because it is a “useful article.”  There is a related concept in trademark law that applies to trademarks that have become so common that they now just refer to a generic product type.  Words like “Aspirin,” “Zipper,” “Heroin,” “Escalator,” “Yo-yo,” and “Thermos,” for example, all used to be entitled to trademark protection but have now become “genericized” and can be used by anyone.

However, the “useful article” doctrine in copyright law does not apply to music.  This means you cannot simply contend that using the Happy Birthday song is permissible without a license just because the song serves a useful function.

What’s left is a “fair use” defense.  As we have blogged about before, fair use is extremely context specific and must be analyzed on a case-by-case basis.  In any particular case, you would have to examine numerous factors, including how the song was used, i.e., whether the use was “transformative,” and how much of the song was used.  For example, a four or five second clip that shows a family member delivering a cake to another family member while singing Happy Birthday could be viewed quite differently than say a 30 second clip of a choir singing the entire song outside the context of celebrating someone’s birthday.  (Although query why anyone would ever sing Happy Birthday outside the context of celebrating someone’s birthday….)

Ultimately, while one may conclude that singing Happy Birthday in a film or television show might constitute a fair use under particular circumstances, there would always be the threat of a lawsuit from the rights holder.

On the other hand, after this new lawsuit is over, there may not be a rights holder to worry about.


This Post Has No Comments.

Leggo My Likeness, Part Four

There are so many fun things you can do with celebrities.  In addition to the traditional things like writing books about them, you can also use their catchphrases to make greeting cardsmake movies about them using puppets; or even use claymation television to have them fight each other to the death.  But what about including digital representations of them in a video game?

new case reinforces the holding of a previous case which stands for the proposition that you can’t put celebrities in a video game and then have them do exactly what they normally do in real life.  (For example, a game like “Lindsay Lohan:  Escape from Rehab” simply would not work).

Unfortunately, the case also sets a bad new precedent.

The case in question is called Hart v. Electronic Arts and represents a dangerously subtle evolution in right of publicity law.  In a 2-to-1 decision, a three judge panel ruled that various NCAA Football games, made by Electronic Arts (EA), did not “sufficiently transform” the identity of a college football player named Ryan Hart to escape his claim that EA violated his right of publicity.

At first blush, it seems that the 3rd Circuit simply copied the “transformative use test” used by the 9th Circuit.  Upon closer inspection, however, it becomes apparent that the 3rd Circuit took the analysis one step further.

The majority began its analysis by reasoning that “[t]he digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game.”  The majority opinion then chastised EA for seeking to increase profits by capitalizing “on the respective fan bases for the various teams and players” by creating “a realistic depiction of college football for the users.”  However, as the dissenting judge recognized, the inclusion of realistic player likenesses to increase profits should have nothing to do with First Amendment protection.  In fact, by making such a distinction, the result is a “medium-specific metric that provides less protection to video games than other expressive works.”

In his dissenting opinion, Judge Thomas Ambro argued that EA’s use of real people as “characters” in its sports games should be treated the same way as portrayals of individuals (fictional or nonfictional) in movies and books.  (After all, who would want to play Tim Tebow in a football game if you couldn’thave him get down on one knee and start praying?)  Along these lines, when an author writes a historical novel, biography, or other book inspired by or involving famous people, the First Amendment protects the author’s right to realistically portray those people.  The same protection applies to filmmakers.  When Oliver Stone made the biographical film “W,” about former President George W. Bush, an obvious goal of the film was to have Josh Brolin’s portrayal of George W. Bush as realistic as possible to increase the likelihood of satisfied movie-goers.  (Naturally, this required pronouncing the word nuclear “nuke-ya-lure,” and including lines like “Whose job is it, to find these damn weapons?” and “I believe God wants me to be president!”)

To be clear, Judge Ambro does not suggest that the First Amendment should protect all digital portrayals of real people, but simply those in which the likeness, as included in the creative work, has been transformed into something more or different than it was before.  This is the test used by the 9th Circuit.  It is also the test articulated by the majority opinion.

Why, then, did the majority end up with a different conclusion than the dissent?

In a footnote to his dissenting opinion, Judge Ambro observes that when the transformative use test was originally developed, California’s Supreme Court borrowed the concept from the “purpose and character of the use” factor relevant to a copyright fair use defense.  In Judge Ambro’s view, the majority opinion permitted “another fair use factor to creep into their transformative analysis.”  Specifically, he observes that the majority also considered the fourth fair use factor, i.e., “the effect of the use upon the potential market for or value of the copyrighted work.”  Judge Ambro concludes his footnote by pointing out that the California Supreme Court expressly excluded this factor when it originally developed the transformative use test in the famous Three Stooges Case.

Yet, the problem remains; an uninvited fair use factor regarding marketability which has no business in a transformative use analysis.  At least in the 3rd Circuit.

In the meantime, video game developers would do well to heed the message in this case:  It is risky to include super-realistic, digital representations of celebrities or athletes in a video game engaging in their normal behavior.  The safest thing to do is change the celebrity’s actual appearance, behavior, and context in which the celebrity appears.  Changing just one of these things—e.g., context—may not be enough.

For example, in the No Doubt case, simply putting a rock band into a fanciful context like outer space did not render the use of the band’s likeness transformative because the band still looked like the band and still did all the same things the band normally did.  By comparison, Kirby v. Sega taught us that the transformative test is satisfied if you give a celebrity a new name, a new appearance, and the lovable story of having been “dispatched to investigate an invasion of Earth by dance-loving aliens who shoot earthlings with ray guns, causing them to dance uncontrollably.”

In the end, what bothers me most about the Hart v. Electronics Arts opinion is a throw-away point raised by an amicus brief.  The section of the brief highlighted by the court reads:

“Under [EA’s] application of the transformative test, presumably no infringement would be found if individuals such as the Dalai Lama and the Pope were placed within a violent ‘shoot-em-up’ game, so long as the game included a ‘mechanism’ by which the user could manipulate their characteristics.”

Why did the court highlight this point?  It seems to imply that a video game cannot realistically depict celebrities in any context, even if their behavior is abnormal or uncharacteristic.  Although the court did not expressly make such a statement, the “concern” it evinced is distressing.

I suppose that if anything is clear, it’s that these judges need to start playing more video games.


This Post Has No Comments.

Meet Five Celebrities Who Have Had Worse Tax Days Than Yours

In celebration of Tax Day today, we here at Law Law Land offer tribute to our favorite celebrity/IRS run-ins.  Now, lest you think this is just another list airing dirty celebrity tax laundry, think again.  This is a classy publication, as you well know, so if you’re looking for dirt on which celebrities owe what, look elsewhere. . . like here, or here, or here.  Instead, on this national day of tax collection, Law Law Land is pleased recognize five (or more) of our favorite celebrity tax stories of all time… so far.

Honorable Mention:  Timothy Geithner

In our Honorable Mention category of “Really, Are You Kidding Me?,” we recognize former Treasury Secretary (i.e., head of the U.S. Treasury, the folks you make that tax check out to) Timothy Geithner, who underpaid his personal federal income taxes from 2001 to 2004 by failing to report and pay social security and self-employment tax on income received from the International Monetary Fund.  Mr. Former Secretary subsequently amended his returns since he “should have been more careful.”  We imagine he regretted his “unintentional” decision not to report that income when appearing before the Senate Finance Committee during his confirmation hearings to control the United States’ piggy bank.

Honorable Mention:  Nick Diaz

In our Honorable Mention category of “How Dumb Can You Be?,” the award goes to MMA fighter Nick Diaz, who recently announced during a post-match press conference that he has “never paid taxes in his life” and “is probably going to jail.”  Well, if Nick had only read about some of the other people on this list, then he definitely would have seen that coming! Continue reading the full story . . . »


This Post Has No Comments.

Bill Maher Prevails Over Donald Trump Lawsuit By Sitting and Waiting for the Donald to Figure Out to Drop It Himself

In February, I wrote about a particularly fake-haired boneheaded lawsuit that Donald Trump brought against comedian Bill Maher.  As you may recall, Trump accused Maher of breach of contract based on a joke that Maher had made on The Tonight Show with Jay Leno, in which he had jokingly — really, completely obviously, jokingly — offered $5 million to the charity of Trump’s choice (the Hair Club for Men was Maher’s suggestion) if the real-estate mogul-turned-reality-TV-star-turned-national-punchline could provide proof that he was not, in fact, “the spawn of his mother having sex with an orangutan.”  Ignoring the scientific impossibility of humans and orangutans being capable of producing offspring, and surely torturing his poor lawyer (whom he conscripted to respond to Maher), Trump purported to “accept” this offer by sending Maher a letter enclosing a copy of his birth certificate (short form only, though!) and demanding payment of the $5 million.  When Maher did not respond to the letter, Trump went bananas and filed a lawsuit.

After recounting Bill Maher’s hilarious response to the lawsuit, I boldly joined the near-consensus of legal observers in predicting that Trump would lose the lawsuit.  And I’m here to report, I was wrong — Trump never even had a chance to lose the case, because he dismissed the lawsuit himself, perhaps as a result of his lawyers reaching the same conclusion I did.  (Or perhaps, Trump’s simian brain finally realized that the situation had evolved beyond his control.)

  Continue reading the full story . . . »


This Post Has No Comments.